Citation Nr: 0807478
Decision Date: 03/05/08 Archive Date: 03/12/08
DOCKET NO. 04-06 124 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to an increased initial rating for service-
connected chondromalacia patella, right knee, with
postoperative orthoscopic repair of medial meniscus,
evaluated as 10 percent disabling as of June 30, 1999, 20
percent disabling as of August 24, 2001, 100 percent
disabling as of March 12, 2002, and as 10 percent disabling
as of May 1, 2002.
2. Entitlement to an increased rating for service-connected
chondromalacia patella, left knee, with postoperative
surgical repair, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran had active military service from February 1972 to
September 1980.
This appeal arises from rating decisions by the Department of
Veterans' Affairs (VA) Regional Office (RO) in San Diego,
California. In June 2002, the RO granted service connection
for chondromalacia patella, right knee, with postoperative
orthoscopic repair of medial meniscus, evaluated as 10
percent disabling as of June 29, 2000 (which was also the
assigned an effective date for service connection), as 20
percent disabling as of August 24, 2001, as 100 percent
disabling as of March 12, 2002, and as 10 percent disabling
as of May 1, 2002. The RO subsequently assigned an effective
date for service connection (and the initial 10 percent
rating), of June 30. 1999.
In June 2006, the RO denied the veteran's claim for an
increased rating for service-connected chondromalacia
patella, left knee, with postoperative surgical repair,
evaluated as 10 percent disabling.
In February 2004, the veteran indicated on his appeal form
(VA Form 9) that he desired a hearing before a Member of the
Travel Board (Veterans Law Judge). However, in May 2007, the
veteran stated that he wished to withdraw his request for a
hearing. See 38 C.F.R. § 20.702(e) (2007). Accordingly, the
Board will proceed without further delay.
FINDINGS OF FACT
1. Prior to August 24, 2001, the veteran's service-connected
right knee disability is shown to be productive of full
extension, flexion to no less than 90 degrees, and no
instability.
2. Prior to March 12, 2002, the veteran's service-connected
right knee disability is shown to be productive of extension
to 0 degrees, and flexion to 130 degrees, and no instability.
3. As of May 1, 2002, the veteran's service-connected right
knee disability is shown to be productive extension to no
less than -10 degrees, and flexion to no less than 90
degrees, and no instability.
4. The veteran's service-connected left knee disability is
productive of extension to no less than 0 degrees, and
flexion to no less than 90 degrees, and no instability.
CONCLUSIONS OF LAW
1. Prior to August 24, 2001, the schedular criteria for a
rating in excess of 10 percent for the veteran's service-
connected chondromalacia patella, right knee, with
postoperative orthoscopic repair of medial meniscus, have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes
5010, 5256, 5257, 5260, 5261, 5262 (2007).
2. Prior to March 12, 2002, the schedular criteria for a
rating in excess of 20 percent for the veteran's service-
connected chondromalacia patella, right knee, with
postoperative orthoscopic repair of medial meniscus, have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes
5010, 5256, 5257, 5260, 5261, 5262 (2007).
3. As of May 1, 2002, the schedular criteria for a rating in
excess of 10 percent for the veteran's service-connected
chondromalacia patella, right knee, with postoperative
orthoscopic repair of medial meniscus, have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5256,
5257, 5260, 5261, 5262 (2007).
4. The schedular criteria for a rating in excess of 10
percent for the veteran's service-connected chondromalacia
patella, left knee, with postoperative surgical repair, have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic
Codes 5010, 5256, 5257, 5260, 5261, 5262 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Disability evaluations are determined by comparing the
veteran's present symptomatology with the criteria set forth
in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. §
1155; 38 C.F.R. § Part 4.
Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is
warranted for ankylosis of the knee with favorable angle in
full extension or slight flexion between 0 degrees and 10
degrees.
Under 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is
warranted for slight recurrent subluxation or lateral
instability. A 20 percent rating is warranted for moderate
recurrent subluxation or lateral instability. A 30 percent
rating is warranted for severe recurrent subluxation or
lateral instability.
Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent evaluation is
warranted where knee flexion is limited to 45 degrees. A 20
percent evaluation is warranted where knee flexion is limited
to 30 degrees. A 30 percent evaluation is warranted where
knee flexion is limited to 15 degrees.
Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent evaluation is
warranted where knee extension is limited to 10 degrees. A
20 percent evaluation is warranted where knee extension is
limited to 15 degrees. A 30 percent evaluation is warranted
where knee extension is limited to 20 degrees.
Under 38 C.F.R. § 4.71a, DC 5262, a malunion of the tibia and
fibula of either lower extremity warrants a 20 percent
evaluation if there is a marked knee or ankle disability.
The words "slight," "moderate" and "severe" as used in
the various diagnostic codes are not defined in the VA
Schedule for Rating Disabilities. Rather than applying a
mechanical formula, the Board must evaluate all of the
evidence, to the end that its decisions are "equitable and
just." 38 C.F.R. § 4.6 (2007). It should also be noted
that use of terminology such as "severe" by VA examiners
and others, although an element of evidence to be considered
by the Board, is not dispositive of an issue. All evidence
must be evaluated in arriving at a decision regarding an
increased rating. 38 C.F.R. §§ 4.2, 4.6 (2007).
The standardized description of joint measurements is
provided in Plate II under 38 C.F.R. § 4.71. Normal
extension and flexion of the knee is from 0 to 140 degrees.
Ankylosis is immobility and consolidation of a joint due to
disease, injury, surgical procedure. Shipwash v. Brown, 8
Vet. App. 218, 221 (1995).
As for the history of the veteran's right knee disability,
see 38 C.F.R. § 4.1 (2007), the veteran's service medical
records show that he was treated for right knee symptoms
several times in March 1978, after he was noted to have
sustained a Grade I medial collateral ligament strain in
1977. The veteran's separation examination report, dated in
September 1980, does not note any findings for the right
knee.
The RO has evaluated the veteran's right knee disability
under Diagnostic Codes (DC's) "5010-5260." See 38 C.F.R. §
4.27 (2007) (hyphenated diagnostic codes are used when a
rating under one diagnostic code requires use of an
additional diagnostic code to identify the basis for the
evaluation assigned; the additional code is shown after the
hyphen). This hyphenated diagnostic code may be read to
indicate that traumatic arthritis of the right knee is the
service-connected disorder, and it is rated as if the
residual condition is limitation of flexion under DC 5260.
For the period prior to August 24, 2001, the Board finds that
the criteria for a rating in excess of 10 percent for the
right knee under either DC 5260 or 5261 have not been met.
The relevant medical evidence consists of VA progress notes,
and two VA examination reports, dated in July 1999, and June
2001. The VA progress notes include a July 2000 report
noting that the veteran had "significantly different"
results between voluntary movements (i.e., testing vs.
functional movements). The report noted flexion to 100
degrees, however, when the veteran's attention was diverted
to his hip, he was "easily able" to flex the right knee to
120 degrees. The July 1999 VA examination report notes that
the veteran had full extension in the supine position, and
flexion to no less than 90 degrees. The June 2001 VA
examination report notes extension to 0 degrees, and flexion
to 125 degrees.
The Board notes that the examiner stated, "I seriously
question the degree to which this individual is cooperating
with this examiner and it is entirely possible that he
actually can move his knees better than he demonstrates."
This places into question the veteran's credibility, which
the Board must take into consideration in evaluating his
claims. Such a statement clearly provides evidence against
these claims.
Accordingly, the Board finds that the criteria for a rating
in excess of 10 percent under either DC 5260 or DC 5261 have
not been met. Furthermore, there is no evidence of ankylosis
of the right knee with favorable angle in full extension or
slight flexion, and the criteria for a 30 percent rating for
the right knee under DC 5256 are not shown to have been met.
With regard to DC's 5260 and 5261, a higher evaluation is not
warranted for functional loss. See 38 C.F.R. §§ 4.40 and
4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-206 (1995);
VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). In this case,
the July 1999 VA examination report shows the veteran
reported constant pain, and would not permit even the
"simplest passive manipulation." The report notes that he
could only squat 50 percent of the way down due to alleged
discomfort. The diagnosis noted very painful patellofemoral
chondromalacia, and that he had a severe disability with
functional impairment on activities such as prolonged
standing, walking, deep knee bending, stooping, running and
jumping. It was noted that his impairment "would seem to be
based mainly on the basis of pain and secondary weakness."
The June 2001 VA examination report noted use of a cane, and
knee supports, "slight" subpatellar crepitation, and a
suggestion of marked quadriceps weakness.
Notwithstanding these notations, the medical evidence
indicates that the veteran gave inconsistent (at best)
efforts during testing. The June 2001 examiner further
indicated that the veteran misrepresented his medical
history, specifically, that he gave an inservice history of
right knee surgery that was not supported by his service
medical records. Such facts provide evidence against all
claims in this case.
Given the foregoing, the Board has assigned more probative
value to the objective evidence of record. For example, in
this case, the July 1999 VA examination report shows that on
examination, there was no swelling or effusion, and that the
veteran had no indication of incoordination. VA progress
notes, dated in March and May of 2001, note that the right
lower extremity had 5/5 strength. In summary, the medical
evidence does not contain sufficient evidence of such
symptoms as neurological impairment, incoordination, loss of
strength, or other findings that would support a higher
rating on the basis of functional loss due to pain. The
Board finds that, when the ranges of motion in the right knee
are considered together with the evidence of functional loss
due to right knee pathology, the evidence does not support a
conclusion that the loss of motion in the right knee more
nearly approximates the criteria for a 20 percent rating
under either DC 5260 or DC 5261, even with consideration of
38 C.F.R. §§ 4.40 and 4.45.
The Board further finds that a rating in excess of 10 percent
is not warranted under DC 5257. The evidence does not show
that during the time period in issue, the veteran had
moderate recurrent subluxation or lateral instability of the
right knee. In this regard, the July 1999 VA examination
report notes that there was "no significant ligamentous
laxity." The June 2001 VA examination report does not note
any instability. Accordingly, the Board finds that the
criteria for a rating in excess of 10 percent under DC 5257
have not been met for the right knee, and that the claim must
be denied. In making this determination, the Board finds
that since DC 5257 is not predicated on loss of range of
motion, 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca
v. Brown, 8 Vet. App. 202, 204-206 (1995); do not apply.
Johnson v. Brown, 9 Vet. App. 7, 9 (1996).
For the period from August 24, 2001 to March 12, 2002, the
RO has assigned a 20 percent rating.
The Board finds that the criteria for a rating in excess of
20 percent under either DC 5260 or 5261 have not been met.
The only medical evidence dated during this time period are a
few VA progress notes. VA progress notes, dated in September
and November of 2001, state that the right knee had extension
to 0 degrees, and flexion to 135 degrees. A VA progress
note, dated March 6, 2002, states that the right knee had
extension to 0 degrees, and flexion to 130 degrees. Given
the foregoing, there is no medical evidence dated during the
time period in issue to support a rating in excess of 20
percent. In fact, it is important for the veteran to
understand that there is little objective evidence for the
basis of the 20 percent evaluation. Accordingly, the Board
finds that the criteria for a rating in excess of 20 percent
under either DC 5260 or DC 5261 have not been met.
With regard to DC's 5260 and 5261, a higher evaluation is not
warranted for functional loss. See 38 C.F.R. §§ 4.40 and
4.45; DeLuca; VAGCOPPREC 9-98. In this case, the medical
evidence does not contain evidence of such symptoms as
neurological impairment, incoordination, loss of strength, or
any other findings that would support a higher rating on the
basis of functional loss due to pain. The VA progress notes
indicate that the veteran was taking physical therapy
following left knee surgery, and that he was neurovascularly
intact, and neurologically intact, with no effusion,
erythema, or warmth. Motion and strength for the RLE (right
lower extremity) were within normal limits. A September 2001
VA magnetic resonance imaging study contains an impression
noting a tear of the medial meniscus, and a subacute partial
tear of the anterior crurciate ligament. A March 2002 VA
progress note indicates that right knee X-rays revealed no
osseous, joint or soft tissue abnormalities. In summary, the
medical evidence is insufficient to show that the veteran has
symptoms such as neurological impairment, atrophy, or
incoordination that an increased rating is warranted for the
right knee. The Board therefore finds that, when the ranges
of motion in the right knee are considered together with the
evidence of functional loss due to right knee pathology, that
the evidence does not support a conclusion that the loss of
motion in the right knee more nearly approximates the
criteria for a 30 percent rating under either DC 5260 or DC
5261, even with consideration of 38 C.F.R. §§ 4.40 and 4.45.
The Board further finds that a rating in excess of 20 percent
is not warranted under DC 5257. The VA progress notes
contain a number of findings noting that he was stable "post
drawer," and to varus and valgus stress, with a March 2002
note stating that the pcl (posterior cruciate ligament) was
stable. There are a couple of notations of "stable Lachman
with endpoint but some laxity noted compared to L (left)
knee." In summary, the evidence does not show that during
the time period in issue, the veteran had severe recurrent
subluxation or lateral instability of the right knee.
Accordingly, the Board finds that the criteria for a rating
in excess of 20 percent under DC 5257 have not been met for
the right knee, and that the claim must be denied. In making
this determination, the Board finds that since DC 5257 is not
predicated on loss of range of motion, 38 C.F.R. §§ 4.40 and
4.45, as interpreted in DeLuca, do not apply. Johnson.
As a total (100 percent) rating is in effect from March 12,
2002 to April 30, 2002, this period need not be further
discussed, other than to note that the veteran was recovering
from a right knee arthroscopy with partial medial
meniscectomy during this time. The issue of entitlement to
temporary total evaluation (for the veteran to recover from
the surgery) has not been appealed by the veteran and is not
before the Board at this time. A 10 percent rating is in
effect as of May 1, 2002.
As of May 1, 2002, the Board finds that the criteria for a
rating in excess of 10 percent for the right knee under
either DC 5260 or 5261 have not been met. The relevant
medical evidence consists of VA progress notes, and two VA
examination reports, dated in August 2004, and August 2007 (a
February 2006 VA examination report is confined to the left
knee). The VA progress notes contain a number of range of
motion findings, which show that he had extension to no less
than -10 degrees, and flexion to no less than 90 degrees.
The August 2004 VA examination report notes that the veteran
had extension to 0 degrees, and flexion to 125 degrees. The
August 2007 VA examination report notes extension to 0
degrees, and flexion to 140 degrees. Accordingly, the Board
finds that the criteria for a rating in excess of 10 percent
under either DC 5260 or DC 5261 have not been met.
With regard to DC's 5260 and 5261, a higher evaluation is not
warranted for functional loss. See 38 C.F.R. §§ 4.40 and
4.45; DeLuca; VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). In
this case, the August 2004 VA examination report notes use of
bilateral knee braces, and reports that he "only very
occasionally" used a cane. On examination, he had "a
little bit of a wide-based gait." He was walked slowly.
Measurements were equal bilaterally at the mid-thigh and mid-
calf. The impression was right knee meniscal disease with
chondromalacia, and significant limitation in range of
motion, and function. The examiner stated that except as
noted, there were no additional flares or further loss in the
range of motion, or in functional capability, beyond that
expected for age and gender by pain, fatigue, weakness, or
lack of endurance after repetitive usage.
Further, the February 2006 VA examination report notes that
the veteran reported that he walked with a cane about 80
percent of the time, that he used bilateral knee braces, and
ongoing pain. On examination, he walked fairly stiff-legged.
The diagnosis was limited to the left knee. The August 2007
VA examination report shows that the veteran complained of
unsteadiness with disequilibrium on fast walking, and a
tendency to fall if he didn't use his braces. He complained
of daily pain, an inability to use stairs, and constant use
of braces bilaterally. On examination, there was no
swelling, redness, or deformity. There was no additional
limitation following repetitive use. Gait was normal. There
were no neurological abnormalities. The range of motion of
the knees was not additionally limited by fatigue, pain,
weakness, lack of endurance, or incoordination following
repetitive use and during flare-ups. The relevant diagnosis
was history of chondromalacia of the right knee, status post
debridement, with a notation of osteoarthritis of the right
knee, providing, overall evidence against this claim.
Finally, the Board notes that the claims files include a
number of VA X-rays for the right knee, dated between 2003
and 2007. The 2003 and 2004 X-rays were normal. The next X-
ray report, dated in 2006, notes mild osteoarthrosis in the
medial compartment. The 2007 X-ray report notes mild
osteoarthritic change without acute osseous injury.
In summary, the medical evidence does not contain sufficient
evidence of such symptoms as neurological impairment,
incoordination, loss of strength, or other findings that
would support a higher rating on the basis of functional loss
due to pain. The Board finds that, when the ranges of motion
in the right knee are considered together with the evidence
of functional loss due to right knee pathology, the evidence
does not support a conclusion that the loss of motion in the
right knee more nearly approximates the criteria for a 20
percent rating under either DC 5260 or DC 5261, even with
consideration of 38 C.F.R. §§ 4.40 and 4.45.
The Board further finds that a rating in excess of 10 percent
is not warranted under DC 5257. The evidence does not show
that during the time period in issue, the veteran had
moderate recurrent subluxation or lateral instability of the
right knee. In this regard, the August 2004 VA examination
report does not note instability. The August 2007 VA
examination report states that the ligaments are intact, that
there was no meniscus tear, that there were no varus or
valgus deformities, and that there was no instability.
Finally, the VA progress notes contain a number of findings
indicating that there was no instability to varus or valgus
stress. Accordingly, the Board finds that the criteria for a
rating in excess of 10 percent under DC 5257 have not been
met for the right knee, and that the claim must be denied.
In making this determination, the Board finds that since DC
5257 is not predicated on loss of range of motion, 38 C.F.R.
§§ 4.40 and 4.45, as interpreted in DeLuca, do not apply.
Johnson.
It is important for the veteran to understand that the post-
service medical record actually provides greater evidence
against his claim then in favor of it, outweighing his
statements to the VA, clearly providing evidence that he does
not meet the criteria for a higher evaluation.
The veteran also asserts that he is entitled to an increased
rating for service-connected chondromalacia patella, left
knee, with postoperative surgical repair, currently evaluated
as 10 percent disabling.
As for the history of the veteran's left knee disability, see
38 C.F.R. § 4.1, the veteran's service medical records show
that he was treated for left knee symptoms several times in
1974. The impression was tendonitis. The veteran's
separation examination report, dated in September 1980, notes
a two-inch scar on the left knee.
The post-service medical evidence contains a number of
notations indicating that the veteran reported that he had
sustained a gunshot wound to the left knee in 1975, and that
he underwent a left knee arthroscopy secondary to a torn
ligament in about 1985. He was noted to have chondromalacia
of the left patella in 1993. VA X-ray reports, dated in
1997, note mild patellofemoral osteoarthritis. VA X-rays in
2003 were normal. VA X-rays in 2004 note mild osteoarthosis,
and no acute osseous injury.
In January 2006, the veteran filed his claim. In June 2006,
the RO denied the claim. The veteran has appealed.
The Board finds that the criteria for a rating in excess of
10 percent for the left knee under either DC 5260 or 5261
have not been met. The relevant medical evidence consists of
VA progress notes, and two VA examination reports, dated in
February 2006, and August 2007. The VA progress notes show
that the veteran had no less than left knee extension to -15
degrees, and flexion to no less than 90 degrees. The
February 2006 VA examination report notes that the veteran's
left knee had extension to 0 degrees, and flexion to 45
degrees. The August 2007 VA examination report notes
extension to 0 degrees, and flexion to 140 degrees.
Accordingly, the Board finds that the criteria for a rating
in excess of 10 percent under either DC 5260 or DC 5261 have
not been met.
With regard to DC's 5260 and 5261, a higher evaluation is not
warranted for functional loss. See 38 C.F.R. §§ 4.40 and
4.45; DeLuca; VAGCOPPREC 9-98. In this case, the February
2006 VA examination report shows the veteran complained of
instability, stiffness, and the constant need for the use of
a brace. He asserted that he used a cane about 80 percent of
the time. X-rays were noted to show tricompartmental
arthritis. The diagnosis noted chondromalacia patella with
tricompartmental arthritis, and marked decreased range of
motion and function, such that he could not bend, squat,
twist and turn, and difficulty walking more than 100 yards,
with significant increased fatigability, as well as weakness
and lack of endurance. The August 2007 VA examination report
shows that the veteran complained of pain, and an inability
to use stairs, run, kneel, or squat. He asserted that he
wore knee braces constantly. On examination, there was no
redness, or deformity. There was no additional limitation
following repetitive use. Gait was normal. Pain began at
110 degrees and ended at 140 degrees. The range of motion
was not additionally limited by fatigue, pain, weakness, lack
of endurance, or incoordination following repetitive use and
during flare-ups. The relevant diagnosis was chondromalaica
of the left knee, status post debridement, with
osteoarthritic changes. The VA progress notes show that the
veteran underwent physical therapy, to include steroid
injections and bike-riding, with findings that included 3+/5
strength in the left lower extremity.
In summary, as above for the right knee, the medical
evidence does not contain sufficient evidence of such
symptoms as neurological impairment, incoordination, loss of
strength, or other findings that would support a higher
rating on the basis of functional loss due to pain.
The Board has considered the notations in the February 2006
VA examination report, however, they are not corroborated by
supportive findings, and they are inconsistent with the
findings in the August 2007 VA examination report. The Board
therefore finds that, when the ranges of motion in the left
knee are considered together with the evidence of functional
loss due to left knee pathology, the evidence does not
support a conclusion that the loss of motion in the left knee
more nearly approximates the criteria for a 20 percent rating
under either DC 5260 or DC 5261, even with consideration of
38 C.F.R. §§ 4.40 and 4.45.
The Board further finds that a rating in excess of 10 percent
is not warranted under DC 5257. The evidence does not show
that the veteran had moderate recurrent subluxation or
lateral instability of the left knee. In this regard, the
February 2006 VA examination report notes that he has
instability, but again, there are no supportive findings, and
this notation appears to be "by history" only. In
contrast, the August 2007 VA examination report notes that,
"The ligaments are intact," that there is no mensical tear,
that there were no varus or valgus deformities, and that
there was no instability of the knee joints. Finally, the VA
progress notes contain a number of findings indicating that
there is no laxity, and that the veteran's knees were stable
to varus and valgus stress. Accordingly, the Board finds
that the criteria for a rating in excess of 10 percent under
DC 5257 have not been met for the left knee, and that the
claim must be denied. In making this determination, the
Board finds that since DC 5257 is not predicated on loss of
range of motion, 38 C.F.R. §§ 4.40 and 4.45, as interpreted
in DeLuca, do not apply. Johnson.
Finally, in Esteban v. Brown, 6 Vet. App. 259, 262 (1994),
the Court held that evaluations for distinct disabilities
resulting from the same injury could be combined so long as
the symptomatology for one condition was not "duplicative of
or overlapping with the symptomatology" of the other
condition. Thus, the Board has also considered whether a
separate, compensable rating would be warranted for a right
knee scar, or a left knee scar.
Effective August 30, 2002, a new regulation was promulgated
concerning ratings for skin disorders, including scars. See
67 Fed. Reg. 49590- 49599 (July 31, 2002). The changed
regulation may not be applied prior to the effective date.
See 38 U.S.C.A. § 5110(g) (West 2002). In this case, the
veteran does not contend, and the evidence does not show,
that a separate compensable rating is warranted for a right
knee scar, or a left knee scar. Under 38 C.F.R. § 4.118,
Diagnostic Codes (DC's) 7803 and 7804 (as in effect prior to
August 30, 2002), a 10 percent evaluation is warranted for
superficial, poorly nourished scars with repeated ulceration,
or scars which are shown to painful and tender on objective
demonstration. Under the provisions of 38 C.F.R. § 4.118,
Diagnostic Code 7804 (as in effect August 30, 2002), a 10
percent evaluation is warranted for superficial scars that
are painful on examination.
In this case, there is no evidence to show that the veteran
has compensable manifestations of a right knee scar, or a
left knee scar. Specifically, the February 2006 VA
examination report notes that the left knee scar was 4 x 5
centimeters, and that it was not disfiguring, impairing,
tender, or keloiding. It occupied less than one percent of
the total body skin area, and 0 percent of the exposed body
skin area. The August 2007 VA examination report states that
the veteran's knee scars were not inflamed, ulcerated, or
tender. There was no keloid formation, no underlying tissue
loss, and there was no functional impairment. Thus, the
assignment of a separate 10 percent evaluation for a right
knee scar, or a left knee scar, is not warranted.
As a final matter, with regard to both knees, under 38 C.F.R.
§ 4.71a, DC 5256, ankylosis of the knee at a favorable angle
in full extension, or in slight flexion between 0 degrees and
10 degrees, warrants a 30 percent evaluation.
Under 38 C.F.R. § 4.71a, DC 5262, a malunion of the tibia and
fibula of either lower extremity warrants a 20 percent
evaluation if there is a marked knee or ankle disability.
For both knees, during the entire time period in issue, a
rating in excess of 10 percent is not warranted under DC 5256
or DC 5262, as the clinical findings do not show that the
veteran has ankylosis of the right knee, or the left knee, or
a malunion of the tibia and fibula.
Separate ratings under 38 C.F.R. § 4.71a, DC Code 5260 and DC
5261 may be assigned for disability of the same joint, if
none of the symptomatology on which each rating is based is
duplicative or overlapping. See VAOPGCPREC 9-04. In this
case, however, with one exception, there are no findings to
show that the veteran's right knee or left knee extension is
limited to the extent necessary to meet the criteria for a
separate compensable rating. See 38 C.F.R. § 4.71, Plate II,
DC 5260. In this regard, a June 2006 VA progress note
contains findings noting a compensable limitation of knee
extension, bilaterally. However, these findings are
aberrations. Specifically, they are not corroborated
anywhere else in the medical reports, which span a number of
years. Therefore, when this evidence is viewed in
association with the other range of motion findings, to
include a full range of motion in the knees bilaterally in
the August 2007 VA examination report, the Boards finds that
this evidence is insufficient to show a worsening of either
knee, such that separate ratings are warranted for either
knee. Additionally, to assign two, separate compensable
ratings solely based on painful motion under two separate
diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261)
would be in violation of the rule of pyramiding. See 38
C.F.R. § 4.14; VAOPGCPREC 9-04. Accordingly, the claims must
be denied.
The Board notes that as the veteran is not eligible for a
separate, additional rating for instability of either the
right knee or the left knee. Briefly stated, the evidence is
insufficient to show that the veteran's right knee, or left
knee, is productive of instability. See e.g., August 2007
VA examination report. Therefore, a separate and additional
rating for instability of the right knee, or the left knee,
is not warranted.
In deciding the veteran's increased evaluation claims, the
Board has considered the determination in Hart v. Mansfield,
No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), and whether the
veteran is entitled to an increased evaluation for separate
periods based on the facts found during the appeal period.
As noted above, the Board does not find evidence that the
veteran's right knee, or left knee, evaluation should be
increased for any other separate period based on the facts
found during the whole appeal period. The evidence of record
supports the conclusion that the veteran is not entitled to
additional increased compensation during any time within the
appeal period. The Board therefore finds that the evidence
is insufficient to show that the veteran had a worsening of
his right knee or left knee disability such that an increased
evaluation is warranted.
In reaching these decisions, the Board considered the
benefit- of-the-doubt rule; however, as the preponderance of
the evidence is against the appellant's claims, such rule is
not for application. 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Duties to Notify and Assist
The Board finds that VA has satisfied its duties to the
veteran under the Veterans Claims Assistance Act of 2000
(VCAA). A VCAA notice consistent with 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." This "fourth element" of
the notice requirement comes from the language of 38 C.F.R. §
3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet.
App. 112 (2004).
In March 2001 (right knee), and February 2006 (left knee),
the RO sent the veteran notice letters (hereinafter "VCAA
notification letters") that informed him of his and VA's
respective responsibilities for obtaining information and
evidence under the VCAA. He was asked to identify all
relevant evidence that he desired VA to attempt to obtain.
With regard to the left knee, the February 2006 VCAA
notification letter was sent before the initial AOJ decision
regarding the left knee (in June 2006).
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006).
With regard to the right knee, during the pendency of this
appeal, on March 3, 2006, the Court issued a decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), which held that the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to
all five elements of a service connection claim. Those five
elements include: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability. The Court held that upon
receipt of an application for a service-connection claim, 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to
review the information and the evidence presented with the
claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating or is necessary to substantiate
the elements of the claim as reasonably contemplated by the
application. Id. Additionally, this notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded. Id.
The Court, in Dingess, also stated the following:
In cases where service connection has
been granted and an initial disability
rating and effective date have been
assigned, the typical service connection
claim has been more than substantiated,
it has been proven, thereby rendering
section 5103(a) notice no longer required
because the purpose that the notice was
intended to serve has been fulfilled.
Id. at 491.
Furthermore, the Court stated that once a claim for service
connection has been substantiated, the filing of a notice of
disagreement with the RO's decision does not trigger
additional § 5103(a) notice. Id. at 493. While the veteran
has not claimed that VA has not complied with the notice
requirements of the VCAA, § 5103(a) and § 3.159(b)(1) are no
longer applicable in the instant case. Service connection
was granted in June 2002, a disability rating was assigned,
and an effective date was established. Therefore the
veteran's claim was substantiated as of June 2002. Any error
in failing to provide §5103(a) notice could not be
prejudicial to the veteran because the purpose of §5103(a)
notice is to provide notice of what is required for the
veteran to substantiate his claim, and here, his claim has
been substantiated. See Id. (holding that the Board does not
commit prejudicial error in concluding that a VCAA-notice
letter complied with § 5103(a) and § 3.159(b), where a claim
for service connection has been substantiated, because such
notice is not required).
The Court also found that once a claim for service connection
is substantiated VA's statutory duties are specified under §
5104 and § 7105, and applicable regulatory duties are found
at 38 C.F.R. § 3.103. Id.
VA satisfied these duties by issuance of complying rating
decision in June 2002, the February 2004 statement of the
case, and the August 2005 and September 2007 supplemental
statements of the case. The veteran was afforded the
opportunity for a hearing, but withdrew his request for one.
Further, the record also shows that the veteran has actual
knowledge of the evidence necessary to substantiate a claim
for a higher rating, based upon his arguments those presented
by his representative. See e.g., January 2008 brief.
With regard to the left knee, no further notice is needed as
to any disability rating or effective date matters. As the
claim has been denied, any questions as to the disability
rating or the appropriate effective date to be assigned are
moot. Therefore, VA's duty to notify the appellant has been
satisfied, and no prejudice to the veteran in proceeding with
the issuance of a final decision. See Bernard v. Brown, 4
Vet. App. 384, 394 (1993) (where the Board addresses a
question that has not been addressed by the agency of
original jurisdiction, the Board must consider whether the
veteran has been prejudiced thereby).
Also with regard to the left knee, the February 2006 VCAA
notice did not discuss the criteria for an increased rating,
thus, the VCAA duty to notify has not been satisfied with
respect to VA's duty to notify him of the information and
evidence necessary to substantiate the claim. See Quartuccio
v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v.
Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008).
In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit held
that any error by VA in providing the notice required by 38
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed
prejudicial, and that once an error is identified as to any
of the four notice elements the burden shifts to VA to
demonstrate that the error was not prejudicial to the
appellant. The Federal Circuit stated that requiring an
appellant to demonstrate prejudice as a result of any notice
error is inconsistent with the purposes of both the VCAA and
VA's uniquely pro-claimant benefits system.
Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication. To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or (3) that a benefit could not have been awarded
as a matter of law. Although not specifically discussed by
the court, some other possible circumstances that could
demonstrate that VA error did not prejudice the claimant
include where the claimant has stated that he or she has no
further evidence to submit, or where the record reflects that
VA has obtained all relevant evidence.
In this case, the Board finds that any VCAA notice errors did
not affect the essential fairness of the adjudication as VA
has obtained all relevant evidence, and as the appellant has
demonstrated actual knowledge of what was necessary to
substantiate the claims. Id., Vazquez-Flores, slip op. at
12. Specifically, a review of the appellant's
representative's submissions, received in September 2007, and
January 2008, shows that these submissions were filed
subsequent to the September 2007 supplemental statement of
the case, which listed all of the relevant criteria for an
increased rating. In his statement, received in September
2007, the veteran stated that he had no additional evidence
to submit. The January 2008 submission discussed the medical
findings, as well as some of the criteria for increased
evaluations. These actions by the veteran and his
representative indicate actual knowledge of the right to
submit additional evidence and of the availability of
additional process. As both actual knowledge of the
veteran's procedural rights, and the evidence necessary to
substantiate the claim, have been demonstrated and he, or
those acting on his behalf, have had a meaningful opportunity
to participate in the development of his claim, the Board
finds that no prejudice to the veteran will result from
proceeding with adjudication without additional notice or
process. Furthermore, as discussed below, it appears that VA
has obtained all relevant evidence. Id.
The Board further finds that VA has complied with the VCAA's
duty to assist by aiding the veteran in obtaining evidence.
It appears that all known and available records relevant to
the issues on appeal have been obtained and are associated
with the veteran's claims files. The RO has obtained the
veteran's available service medical records, as well as VA
and non-VA medical records.
In this regard, in August 2004, the medical facility at Camp
Pendleton, California, stated that they had no relevant
records. The veteran has been afforded VA examinations. The
Board therefore concludes that decisions on the merits at
this time do not violate the VCAA, nor prejudice the
appellant under Bernard v. Brown, 4 Vet. App. 384 (1993).
Based on the foregoing, the Board finds that the veteran has
not been prejudiced by a failure of VA in its duty to assist,
and that any violation of the duty to assist could be no more
than harmless error. See Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004).
ORDER
Prior to August 24, 2001, a rating in excess of 10 percent
for service-connected chondromalacia patella, right knee,
with postoperative orthoscopic repair of medial meniscus, is
denied.
Prior to March 12, 2002, a rating in excess of 20 percent for
service-connected chondromalacia patella, right knee, with
postoperative orthoscopic repair of medial meniscus, is
denied.
As of May 1, 2002, a rating in excess of 10 percent for
service-connected chondromalacia patella, right knee, with
postoperative orthoscopic repair of medial meniscus, is
denied.
A rating in excess of 10 percent for service-connected
chondromalacia patella, left knee, with postoperative
surgical repair, is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs